“Rights Grabs”

Recently there was a big stink on Rolling Stone.com about Lady Gaga’s contract

From the website:

Lady Gaga is now demanding that photographers surrender the copyright of photos taken at her concerts – and photographers are incensed.
Washington, D.C. website TBD.com made this practice public on Friday when they published the release form given to their photographer Jay Westcott. In addition to standard release restrictions regarding the use of images shot at her concerts, the document states that any photos taken at the show  become the property of Lady Gaga. This an especially bold demand as the government has established that copyright exists the moment when a work is created, which in this case is the moment when a photographer clicks their shutter button.

This practice has been going on for years. It exists because many photographers will sign the contract, thereby validating it in the eyes of the people who write these contracts. Many times the artists don’t even know that this is going on- it is all the work of their managers and agents. It also continues because most publications do not have the balls to stand behind their photographers. Many months ago, I wrote about the start of the 1984 Van Halen tour. The first two days of the tour were in Milwaukee and Chicago. On the first night, Neal Preston, who flew in to shoot the band for People Magazine, refused to sign a horrible contract and got in his car and went back to the airport to fly back to LA. (People Magazine supported his decision). From the airport, he called me to explain the decision. The following day, I called Rolling Stone (who I was shooting for that night) and asked if they would stand by the same decision. They said yes. Armed with that info, I also refused to sign the contract. I put my equipment in the trunk of my car, started it up and was about to leave, when I heard my name being yelled. It was VH’s road manager, asking me to come back inside and talk to Ed Leffler, the bands manager. He told me to cross out and initial the parts of the contract that concerned me. I crossed out all 5 pages, except for the heading and the signature blanks. After a 30 minute discussion, and a consultation with Eddie Van Halen, who said he really didn’t care what anybody did as long as they got good pictures, Ed tore up the contract, turned to me and said, “Do whatever the F__K you want.” As far as I know, that was the last contract on that Van Halen tour!

Some people have reported that this contract constitutes a work for hire agreement. That is not the case! From the US copyright office:

If the work is created by an independent contractor or freelancer, the work may be considered a work for hire only if all of the following conditions are met:

  • the work must come within one of the nine limited categories of works listed in the definition above, namely (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas;
  • the work must be specially ordered or commissioned;
  • there must be a written agreement between the parties specifying that the work is a work made for hire.

The term most often used is “Rights Grab.” This couldn’t be farther from the truth! . It is not a rights grab. It is photographers giving up their rights. The only way to stop this from happening is for you to walk away. Up until about 8 years ago, I was out shooting 5 nights a week. Now I shoot about twice a month. I earn a living licensing photos I took in the 70’s and the 80’s. I would NEVER sign one of these contracts. I learned that from my old friend Jim Marshall, who once, in a very quiet restaurant, asked me if I “put up with all of that 3 song b—l s–t. When I told him that I had no choice, he yelled in my face “You are a F–king moron.” I never signed another contract. Lost most of my business, but I can sleep at night.

In the next few weeks, I want to explore this issue. I post every Sunday morning on this blog. Please comment if you like!

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